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December 12, 2007

"Give them McDeath, not McLiberty"

Though there will surely be lots of different political reactions to the US Sentencing Commission's crack retroactivity decision, I found this news item reporting on one reaction especially notable:

Yesterday, Congressman Patrick McHenry (R-NC-10) issued the following statement in response to the U.S. Sentencing Commission’s decision to give retroactive leniency to convicted crack cocaine abusers and dealers.....

“The bottom line is this decision will let over 500 convicted criminals loose on the streets of Western North Carolina, and, frankly, that is unacceptable,” said Congressman McHenry. “The Commission’s decision defies basic common sense, and poses a serious threat to public safety.”

I suppose, were this congressman to get a guest spot on Grey's Anatomy, he might get the moniker "McMeany." 

In all seriousness, Congressman McHenry's concerns are understandable, but my "basic common sense" tells me that the federal judges in North Carolina and nationwide will, as the USSC urges, give special attention to public safety issues before letting too many dangerous criminals loose on the streets.   

More broadly, this visceral reaction to crack retroactivity spotlights the serious possibility that some members of Congress might make a serious effort to undo the USSC's work yesterday before it becomes effective in March 2008.

December 12, 2007 at 10:40 AM | Permalink


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Can someone explain to me how letting a nonviolent drug offender out of prison a little early even remotely affects public safety? Take me down that slippery slope, please. I'm curious what lies at the bottom.

Posted by: bruce | Dec 12, 2007 11:09:59 AM

The problem is you think they are all nonviolent and the congressman thinks they are all violent and the truth is somewhere in between. The DOJ did a study about ten years ago and concluded that about 20% were violent but their study used arrests for violent crimes in addition to convictions for violent crimes. An arrest can be based on imaginary evidence and I think the study should be repeated using convictions only. There was a lot more violent crime ten years ago so that is another reason for a new study.

A lot of people think that anyone who is jailed is a threat to public safety and all felons are dangerous.

Posted by: John Neff | Dec 12, 2007 11:26:00 AM

It had to be a Republican. Where did the compassionate convervatism go?

Posted by: EJ | Dec 12, 2007 11:35:17 AM

John, a lot of people are stupid. The average person is a moron (which by definition means 50% of people are even dumber than that). The voice of the people has no place in determining public policy, that's why we're a republic rather than a democracy.

But I'm just talking about people serving sentences for possession, manufacture, distribution, and/or conspiracy to do same. That's my definition of "nonviolent drug offender." There are also plenty of nonviolent felons, such as those serving up to 5 years for structuring financial transactions to avoid the filing of currency transaction reports (a few deposits of $9999.99... which i've never understood why people do because the threshold is "OVER 10,000 dollars"). Even violent felons, after serving a few years, are likely rehabilitated. See how they've acted in prison, see what their attitude is, and let them out. Yes, some will kill little children, but it will be rare. And it will be worth it in the long run.

Posted by: bruce | Dec 12, 2007 11:38:34 AM

FWIW, isn't the Congressman there from the same district as the US Attorney who testified at the Sentencing Commission's retroactivity hearing? I'm not surprised that he latched on to her parade of horribles argument, if that's the case.

Posted by: JDB | Dec 12, 2007 1:41:37 PM

"Even violent felons, after serving a few years, are likely rehabilitated."

I am dumbfounded by this statement since it is absolutely, 100% contrary to any study ever done regarding recidivism. For someone liberally throwing about the term "moron" you've got a lot of nerve.

Posted by: dweedle | Dec 12, 2007 3:18:45 PM

Well, folks, if there is so much conclusive literature out there, why don't you cite it?

As far as I am concerned, the only way to rehabilitate someone is to give them a job that pays a living wage (i.e. no less than $80k/year). Somehow these people seem to commit fewer crimes than people working for inhuman wages.

Posted by: S.cotus | Dec 12, 2007 4:02:13 PM

He is just mad because they are not extending the same courtesy to all the moonshiners in his Western North Carolina district.

Posted by: william | Dec 12, 2007 4:22:10 PM

dweedle: the only studies I've seen that show high recidivism rates are drug use (addiction) and certain sexual offenses. Most violent crimes are one-off incidents caused by unfortunate circumstances (beat up the guy screwing your wife, slap the guy who got you fired, kick the guy who keyed your car). For most people and most crimes, just being arrested, booked, kept in jail for a day or so, and having to post bond and go through the embarassment of being arraigned is FAR MORE than sufficient punishment.

Also, most of the "recidivism" you are talking about, Dweedle, is due to insane parole conditions that most people simply cannot follow to the letter. Being sent back to prison (thus a recidivist in your mind) because you were caught in traffic and couldn't make it on time to your weekly mandatory visit to your probation officer is not the type of recidivism that I, and other intelligent people, am talking about. Probation and parole are set up as a trap so that people will fail.

Posted by: bruce | Dec 12, 2007 6:15:48 PM

I recently computed probabilities of revocation for probation (7%), parole (35%) and work release (38%) and in most cases the revocation was after intermediate sanctions were tried multiple times. In fact the reason the probability for work release is so high is because it is one of the intermediate sanctions for parole. The prisons are crowded and they are looking for people in prison who are good risks for parole and they have set the bar too low.

The highest return rates are for mentally ill prisoners (90%) who were not paroled because they were poor risks and persons who were not paroled because of the nature of their crime or their behavior in prison (60% to 70%). Sex offenders have the lowest recidivism rate (multiple rapists are sentenced to 70% of a 40 year sentence or to LWOP and don't have many opportunities to return), DUI and drugs have high recidivism rates (putting them back in prison three or four time will grind them if they don't die first).

Posted by: John Neff | Dec 12, 2007 6:45:08 PM

John I'd like to see your data.

At the state level, at least here in Texas, probation revocation is FAR more than 7%, though that's just based on my own experience/observation primarily in Harris County (Death Penalty capital of the world, might be slightly skewed).

Drug use, of course, is high recidivism rate, but DWI usually gets probation the first and second time, only DWI 3rd (felony) does prison typically come into play (in the average case). By recidivism I mean "going back to prison" not necessarily "committing the same crime again."

Posted by: bruce | Dec 12, 2007 11:42:10 PM

The numbers for FY06 are 1,607 probation revocations out of 22,540 probationers giving a probability of revocations of 7.1%. I mixed up the parole and OWI/DUI continuum percentages the correct figures for parole are 539 revocations out of 3,665 parolees a 14.7% probability. For work release there were 471 revocations out of a total population for the year of 1397 a 36.3% probability and for OWI continuum revocations there were 85 out of 244 a 34.8% probability.

We have prisoners charged with drug and repeat OWI who have returned to prison up to nine times
they served short sentences so it is possible for them to cycle though the system rather quickly. Substance abuse screening on admission to prison revealed that about 30% of them had never been treated for alcohol/drug abuse. That was a very embarrassing discovery and things have improved some.

It appears to me that there are several definitions of recidivism (which commonly means arrest or conviction on a new charge) and I use "return" when they are admitted for a second or subsequent time for whatever reason. An arrest of a parolee for public intoxication (recidivism) could result in a transfer to work release or a week to a month in jail. In such cases unless they do it repeatedly they are unlikely to be revoked (return).

It may not be immediately obvious that a client is not going to cooperate with community based correction (CBC). Once that becomes clear they are usually revoked. If the violations are the result of impulsive behavior that is a more complicated situation because it is possible the client has a bipolar illness (that is a fairly common problem in the general population and I do not know if the CBC population has a higher incidence).

Posted by: John Neff | Dec 13, 2007 8:23:22 AM

John: clearly your numbers are not national. What state are they from?

Posted by: bruce | Dec 14, 2007 1:41:02 PM

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